Commentary: Vermont’s Fourth Branch of Government

The Public Utility Commission, chaired by a noted climate warrior, makes up its own criterion – “societal benefit” – and may soon use that magical incantation to defeat citizen groups whose aesthetic objections would otherwise defeat a Big Solar project. Who voted for that?

A current case before the Public Utility Commission (PUC) may illustrate how that regulatory board has become an unaccountable fourth branch of government, dedicated to accelerating the current preoccupation with defeating the Menace of Climate Change.

The case in point is a developer’s application to install a 500kw solar farm on Richville Road in Manchester. As an energy generation project, it falls under the jurisdiction of the PUC. What follows is the necessarily oversimplified account involving the “aesthetics” criterion that the project must meet to comply with what’s called the Quechee Test.

(The following analysis leans heavily on the excellent 2021 Midyear Report by Annette Smith of Vermonters for a Clean Environment, which is assisting neighbors objecting to the Richville Road Solar Project. I take no position on the overall merits of that Project.)

The legislature, in 1970, enacted Act 250. But it also provided for a carveout from Act 250 review for projects under the jurisdiction of the Public Service Board (renamed the PUC in 2017). The PSB borrowed from Act 250’s Criterion 8 (“no undue adverse effect on aesthetics”). 

This became known as the Quechee Test. The first part inquires whether the project has an adverse effect on aesthetics and natural or scenic beauty. The second part inquires whether any such effect is “undue”. Sometime before 2002 the PSB, on its own, thought up a new and quite expansive third part to the Quechee Test: whether the project delivered “overall societal benefits” that could outweigh undue adverse effects on aesthetics.  Whoa! Where did the PUC find that authority?

In a wind case titled In re Halnon in 2002, the Supreme Court set forth the proper Quechee Test – the first two parts, but not the PSB’s assumed third “Societal Benefits” part. Only eight days after the Court’s Halnon decision, the PSB professed the exact opposite. It claimed the power to overcome any undue adverse aesthetic impact with a single bold sentence declaring that its rulings on aesthetics would be “significantly informed by the overall societal benefits of the project.”

When asked by the (Douglas) Department of Public Service in 2003 to remove its “societal benefits” addition, the PSB stubbornly refused.

In 2014 the legislature directed the PSB to follow the Supreme Court’s statement of the two-part Quechee Test for net-metering projects larger than 150kw. The PSB’s rewrite of its rules incorporated verbatim the Halnon court’s statement of the (two-part) Quechee Test. But the (now) PUC has never retreated from its position that it can approve an application for a renewable energy project by relying upon its invented “societal benefits” criterion to overcome opponents’ “undue adverse effects” aesthetic objections that would otherwise defeat the application under the Supreme Court’s definitive statement of the two-part Quechee aesthetic test.

Last January the PUC, chaired by longtime climate change warrior Anthony Roisman, opined in a legislatively-mandated report that a “robust” carbon tax on heating oil, kerosene and propane is sorely needed “to benefit the users of these fuels.”  That urging followed his announcement two years earlier that Vermont was facing a “Pearl Harbor moment” requiring a “wartime effort” to cope with the growing Menace of Climate Change.

Roisman’s PUC seems likely to use the PUC-created and (arguably) extralegal “societal benefits” criterion to approve Big Wind and Big Solar projects that would otherwise flunk the Supreme Court’s aesthetics test. That would defeat the representations of citizen groups opposed to (arguably) environmentally defective projects, spurn the clear mandate of the Supreme Court, and greenlight the renewable-industrial complex that is waxing fat on subsidized wind and solar.

Only skilled lawyers can penetrate the workings of the PUC. The utilities and the renewable energy developers have hired those skilled lawyers to persuade a receptive PUC to make use of its undefined “societal benefits” criterion - such as “defeating climate change” - to approve their applications.

That’s why the Richville Road Solar developer, in a brief to the PUC, threw in this revealing Roisman-appealing though false argument: “Under Rule 5.112 the Commission conducts an aesthetic review as articulated in Halnon, which includes policy considerations such as societal benefits. The Project, as with other solar net metered projects, will result in societal benefits by utilizing a renewable energy resource that will assist in the reduction of greenhouse gases which in turn will address climate change impacts.”

The PUC’s decision in the Richvile Road application is pending. Will the PUC override the recommendation of its hearing officer by invoking  “societal benefits” to rush through ever more renewable energy projects, that Roisman believes are so desperately needed to save the Earth from a “Pearl Harbor” climate catastrophe?

“Societal Benefits” - the PUC’s magical incantation! Who, again, ever voted for that?

John McClaughry is vice president of the Ethan Allen Institute.


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